Citation Nr: 9824747
Decision Date: 08/17/98 Archive Date: 07/27/01
DOCKET NO. 97-24 177 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Whether new and material evidence has been presented to
reopen a claim of entitlement to service connection for a
skin disorder, to include eczematous dermatitis and skin
cancer.
REPRESENTATION
Appellant represented by: Jewish War Veterans of the
United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Bernie Gallagher
INTRODUCTION
The appellant had active service from February 1942 to
September 1945.
This matter comes before the Board of Veterans' Appeals (the
Board) on appeal as a result of rating decisions by the
Department of Veterans Affairs (VA) regional office (RO) in
St. Petersburg, Florida.
The veteran testified at a hearing at the RO in September
1997. A transcript of that hearing is in the claims folder.
The veteran was scheduled for a hearing at the RO with a
Board member sitting in Washington, D.C., using "video
conferencing" techniques in November 1997. The veteran
failed to appear for the scheduled hearing.
REMAND
A rating decision in October 1947 denied service connection
for acne of the face, claimed as a skin condition. The
veteran was advised of this rating decision and he did not
file a timely appeal.
A rating decision in August 1968 denied service connection
for a claimed fungal skin condition, to include tinea
corporis and tinea cruris. The veteran was advised of this
rating decision and he did not file a timely appeal.
In October 1996, the veteran submitted a statement in support
of claim in which he sought to establish service connection
for "my skin cancer/skin condition." The RO has
adjudicated this claim without reference to the previously
denied claims of entitlement to service connection for a skin
condition and without considering whether new and material
evidence had been presented to reopen the claim.
In order to reopen a claim which has been previously finally
denied, the claimant must present new and material evidence.
38 U.S.C.A. § 5108 (West 1991). Before the Board may proceed
to consider that question, some development effort should be
undertaken by the RO in order to notify the claimant of
evidence necessary to complete his application for VA
benefits. 38 U.S.C.A. § 5103 (West 1991). See Robinette v.
Brown, 8 Vet.App. 69 (1995) (where claimant with not well-
grounded claim refers to specific source of evidence that
could well ground the claim, VA has duty to inform claimant
of necessity to submit that evidence to complete his
application for benefits).
The veteran has offered testimony concerning burns he
suffered in service. He maintained at his September 1997
hearing that he had been told by a physician that these burns
caused him to develop a skin disorder, namely eczematous
dermatitis, for which he now sought service connection. The
veteran stressed his own opinion that he did not have skin
cancer, although there is abundant medical evidence of
diagnoses of skin cancer. He has presented numerous written
statements referring to treatment by various doctors. He has
presented treatment records from some of those private
doctors, and not from others. In the veteran's substantive
appeal, he stated that he had received treatment from Dr.
Peter Hanlon of Ridgewood, New Jersey, in 1947, and that it
was this doctor who diagnosed eczematous dermatitis and
related it to burns the veteran suffered in service. He also
stated that he had recently come across papers from Dr.
Hanlon about his case dating from when he first moved to New
Jersey. The veteran should be told of the importance of
these records to his claim for benefits and should be given
the opportunity to obtain those treatment records and submit
them for consideration.
Furthermore, the veteran has stated that he has received
treatment from a Dr. Albin or Albon at a VA medical facility.
In one statement, the veteran referred to a specific date of
treatment, on April 1, 1997. Although the veteran has
several times suggested that his VA treatment records be
reviewed, it does not appear that those treatment records
have been associated with the claims file. The veteran has
asserted that the records of his treatment by this VA doctor
will support his claim. He should be asked at what VA
facility he has been treated for his skin condition(s) and
for the dates, and those treatment records should be
associated with the file.
The RO should then consider whether new and material evidence
has been presented to reopen the veteran's claim, and, if it
has, undertake such additional development as is warranted.
Accordingly, in order to assure that the issue is fully
developed for appeal, the case is remanded for the following:
1. Contact the veteran and ask him at
which VA medical facility he has received
treatment for his skin condition(s). In
particular, it is important to know at
which facility he has received treatment
from the Dr. Albin or Albon to whom he
has referred in his statements, and to
know the time frame during which that
treatment occurred. Request the
veteran's VA records for treatment of a
skin condition, to include those records
maintained electronically (i.e., by
computer) or in paper files. Associate
all records received with the claims
file.
2. Ask the veteran to submit copies of
his treatment records from Dr. Peter
Hanlon of Ridgewood, New Jersey, and of
any other private treatment records
pertaining to a skin condition, in
keeping with his ultimate responsibility
under 38 C.F.R. § 3.159(c) to present
evidence in support of his claim. Allow
an appropriate period of time for
response. Associate any records received
with the claims file.
3. After the above development has been
accomplished, review the veteran's claims
file and determine whether new and
material evidence has been submitted to
reopen a claim of entitlement to service
connection for a skin condition, to
include skin cancer and/or eczematous
dermatitis. If it is determined that the
veteran has submitted new and material
evidence, undertake any such additional
development as may be warranted in order
to adjudicate the underlying issue of
entitlement to service connection.
4. If the benefit sought on appeal
remains denied, issue a supplemental
statement of the case to the veteran and
his representative, and allow an
appropriate period to respond. The
appellant is free to furnish additional
evidence and argument while the case is
in remand status. Quarles v. Derwinski,
3 Vet.App. 129, 141 (1992); Booth v.
Brown, 8 Vet.App. 109 (1995).
Thereafter, in accordance with the current appellate
procedures, the case should be returned to the Board for
completion of appellate review. No action is required of the
veteran until further notice is issued.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (Historical and Statutory Notes) (West Supp. 1998).
In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV,
directs the ROs to provide expeditious handling of all cases
that have been remanded by the Board and the Court. See M21-
1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
J. SHERMAN ROBERTS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).